Director of Public Prosecutions v Richards

[2018] VCC 962

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

NIGEL RICHARDS (A pseudonym)

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2018
DATE OF SENTENCE:	4 June 2018
CASE MAY BE CITED AS:	DPP v Richards
MEDIUM NEUTRAL CITATION:	[2019] VCC 962

REASONS FOR SENTENCE

---

Subject: Criminal law - sentence 
Catchwords: Pleas of guilty to one charge of sexual penetration of a child under 16 and one (representative) charge of committing an indecent assault - child aged 13 to 15 – offender aged 20 to 22 – offender was boyfriend of child’s older sister – not reported to police for 24 years – delay - profound effects on victim and family – remorse – no prior convictions or further offending – diagnosed with Persistent Depressive Disorder – dysfunctional childhood – steady employment – stable family life – low risk of re-offending.
Cases Cited: R v Boland [2007] VSCA 242; Clarkson v R [2011] VSCA 157
Sentence: 3 years’ imprisonment wholly suspended for two years. 

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A. Hickling	OPP
Galbally O’Bryan
For the Accused	Ms K. Gracer

HER HONOUR:

1       Nigel Richards[1], you have pleaded guilty to one charge of sexual penetration of a child who was over the age of ten years but under sixteen, and one charge of committing an indecent assault. 

[1] Nigel Richards is a pseudonym.

2       You committed these offences on 1 October 1990.  The complainant was aged  13 at the time and you were aged 20. 

3       Mr Richards, for reasons which I shall explain, I will be sentencing you to a term of imprisonment which will be wholly suspended meaning that you will not have to serve the sentence if you do not offend in future. 

4       It is necessary to set out briefly the circumstances of the offending. 

5       Charge 1 is a charge of committing oral sex on the complainant.  It was on her 13th birthday.  She had been singing and dancing in the bedroom and you were outside watching her through the window.  You tapped on the window to attract her attention and she could see that your pants were down and your penis was erect.  You asked her to look and she tried to ignore you.  You persuaded her to come outside and you then told her that you liked her and began to tongue kiss her.  You asked to see her breast and put your hand under her T-shirt and felt them.  You exposed her breasts and touched and kissed them and then pulled down your pants again and asked her to suck you penis which she did. 

6       You then got her to lie down and took her shorts and underpants down.  She tried to resist by sitting up but you persisted and performed oral sex on her.  She told you to stop but you also rubbed her vagina and inserted one or two fingers into it.  You then got on top of her and tried to insert your penis into her vagina, rubbing it against her.  Those actions are Charge 2.

7       In 1990 only penetration with the penis was regarded by the law as sexual penetration, and the five year maximum penalty for this offence reflects that.   Of course I must look at the particular circumstances of what you did including the fact that this is a representative charge.  The fact that this charge involved penetration makes it the most serious form of indecent assault of a child.  When she was aged 15 and you were 22, further sexual activity occurred which is not the subject of any charge but indicates the continuation of sexual behaviour with the complainant and provides aspects of the context in which the offending occurred.  Put briefly it involved kissing and you requesting the complainant to take her clothes off and dance naked in her bedroom while you watched from outside.  On another occasion you asked her to take her clothes off and you rubbed her thighs.

8       That context to which I have referred arose from the fact that you were the boyfriend of the complainant's sister,  whom you later married.  At this time you were living with her family as you had no home of your own.  The background to this situation stems from the tragic circumstances of your childhood. 

9       You are now aged 48, a married man with a 13 year old son and you have worked as a truck driver for many years. 

10      As a boy you found school difficult and you had trouble learning to read and write.  You went to four different primary schools as your family moved around, and later to three secondary schools.  You were academically poor and were teased and bullied.  When you were aged nine your father and seven year old brother were drowned in a tragic boating accident.  Your father stood up in the boat in order to fix a bracket attaching the engine to the dinghy and this caused the boat to capsize.  The three occupants being thrown into the water.  You survived but your father and brother did not.  Your mother was left in a very depressed state and found it difficult to cope, having to resort to living in caravans and on the properties of friends and relatives.  You were often left to fend for yourself and as is now known, you experienced a complex grief reaction and unresolved feelings of guilt.

11      Your mother took other partners over the years and eventually went to live in Queensland when you were a teenager.  You met your now wife when you were 17, and being virtually homeless you went to live with her family.  At this point it is relevant to refer to your psychological state and the stage of your emotional development at that time.

12      A clinical and forensic psychologist, Mr Patrick Newton, assessed you recently and described you as having experienced ongoing depressive symptoms since your youth, brought about by the trauma surrounding your father’s and brother's death, and its profound impact on your family life.  Mr Newton said you had experienced significant social problems as a young person and had achieved sexual maturity only slowly.  He said you remained relatively immature in terms of sexual adjustment well into your adult life.  He said the offending took place in the context of you being innately introverted with a very restricted peer network, owing to frequent moves and disruptions, and restricted opportunities for social interaction.  At that time you felt uncertainty and inadequacy as a young man and this combination of circumstances led you to consider the complainant at 13 as being more mature than she was, indeed as being your equal in terms of maturity.  Thus you failed to understand her vulnerability and the extent of the power imbalance between you.  You considered that she had a crush on you and that she would welcome the sexual activity you imposed upon her.

13      The complainant disclosed aspects of the offending to her family in late 1990 and you were then asked to leave the house.  But because your relationship with her sister continued you were allowed to continue visiting.  No steps were taken by the complainant or her family to report the matter to the police, and this was not done until almost 28 year later in October 2014 when the complainant made a very detailed statement to the police.  I am told that in November or December that year you knew the allegations had been or were being made.  Unfortunately a long delay has occurred since then.  In October 2015 the police arranged a pretext call to take place but this did not prove useful and it was not until February or March 2016 that the police began taking statements from witnesses regarding complaint  evidence.  The police did not request an interview from you for over 18 months, in May 2016, and following the record of interview, it was a further nine months until charges were laid in January 2017.  It appears that the delay was caused by the case being moved from one investigator to another, with not enough being done to advance the progress of the investigation, which did not begin until October 2015, almost a year after the complainant made her statement.

14      As a result you have had to live with the associated uncertainty for over two years.  That type of delay for such a long period is accepted as amounting to a form of punishment in itself, and it is, as your counsel submitted, a powerful mitigating factor which I take into account in determining the appropriate sentence.

15      The use you have made of that period of delay is also a matter to be taken into account, as relevant to your rehabilitation and therefore the question of specific deterrence.  You have continued to work in your usual stable employment and to support your family as you have done for many years.  You have also engaged in counselling with a psychologist, Mr Burrows, during that time, which is ongoing.  A contested committal hearing was held and the complainant and several other witnesses gave evidence.  Efforts had been made to resolve the matter before the committal and afterwards further discussions took place, eventually resulting in the prosecution accepting in February this year a plea offer made in December last year.  Accordingly it was not a plea made at the earliest opportunity but was relatively early, and importantly a trial was avoided so the witnesses have been spared giving evidence again. 

16      You are entitled to a discount on your sentence for that plea and I also take into account that it is an indication of remorse for your behaviour and your acceptance of responsibility for it.  It seems to me from reading the complainant's statement that the long delay in reporting the matter has had the unfortunate effect of delaying this acceptance of responsibility by you in the eyes of the complainant and her family, and has by that indirect means wrought considerable damage to all concerned.  I do not have the benefit of a specific victim impact statement but the very long and articulate statement of the complainant goes a great distance towards achieving the same objective and it is to be hoped that your plea of guilty and expression of remorse is of value to her.

17      That expression of remorse is expanded by Mr Newton in his report where he stated that you now look back on the offending as being very wrong and that you feel a deep sense of shame because of it.  He goes on to say about your shame and I am quoting now from his report.

"This has been incorporated into an intensely self punitive inner dialogue which has become a central feature of his depression."

18      Mr Newton said you could demonstrate during his interview with you some appreciation of the possible effects of your conduct on the complainant and that you expressed empathy for her. 

19      Returning to your personal circumstances, after leaving school after Year 9 you embarked on an apprenticeship as a chef, but you were treated poorly and not instructed adequately and did not finish it.  You became a truck driver and have continued to work in that field, always with steady employment.  You have no prior convictions and you have never had any problems with alcohol or drug use.  You married the complainant’s sister in 1995 and following the stress of multiple cycles of IVF treatment you and your wife became parents 13 years ago when your son was born.  Your wife has been aware of your conduct with her sister since 1990, and although it has been distressing for her, she has remained supportive of you and you believe that your marriage is secure.  She has written a very carefully considered letter to the court which supports that conclusion and describes you as a good person, acknowledging that you had a very difficult time growing up.

20      Your friend Phillip Allen attended court and has also written a letter in your support stressing that the long ago behaviour was quite out of character.

21      I have referred already to Mr Newton's report and I turn now to his diagnosis of persistent depressive disorder.  He said this requires ongoing treatment through counselling and perhaps medical intervention at times of stress.  He said you would likely experience a lengthy and rather difficult adjustment to a custodial environment and you should if that were the case, be monitored by mental health professionals during the early stages of any such sentence because of a likely deterioration in your mental state, which could persist and result in more severe depressive mood disturbance, making your time in custody more onerous than for other prisoners. 

22      Mr Newton reports that counselling so far with Mr Burrows has assisted you to clarify the distorted views you had at the time of the offending about the sexual development of young people.  There is no basis he said, for a diagnosis of paraphilia and your risk of recidivism is low.  In reaching that conclusion Mr Newton considered that the many years that have elapsed, the treatment you have undertaken, the stable life you have led with no other misconduct or further offending and no prior offending, and the existence of several protective factors as well, he considers that your prospects for a lasting and positive adjustment in the community are excellent. 

23      As already noted, Mr Newton observed you to be depressed and added that you are feeling pessimistic about the future because of the challenges that would be faced possibly by your wife and child.  Your instructions to your counsel are that your son is a very anxious boy and there have been situations where he appears to have needed urgent professional attention.  That has settled recently but you are well aware that if you were to be imprisoned, your wife who works part time, would not be able to maintain the mortgage payments without your income and the house would have to be sold. 

24      These are serious offences which had a very significant impact on the complainant and her family. At the time it caused very disturbing feelings of guilt and confusion for her and concern about the consequences.  Her behaviour deteriorated and she began to get into trouble at school and at home and to engage in self harm.  She began counselling with a psychologist but stopped this for fear the offending would be reported to the police.  She was suspended from school and continued her education by correspondence.  Over the years disruption within the family continued to occur when the topic was raised again from time to time and the complainant re-engaged with professional help several times.  She had delayed so long before going to the police because she had been worried that the whole family might break up but eventually she decided that you should be held accountable for your actions and that decision has left her feeling less emotionally intense.  She said in her statement, "I feel that my family's problems now exist in the wider real world."

25      As I said before, great emotional harm was caused to her, which is one of the harms children should be protected from, and is part of the rationale for laws which prohibit sexual activity with young people who are too immature to understand the consequences of it.  That is made very clear by the authorities such as Clarkson v The Queen[2], a decision of the Victorian Court of Appeal to which I was referred during the plea hearing.  General deterrence is an important sentencing consideration in cases involving sexual abuse of children, not least because of the harmful effects upon them as was clearly the case here.  Such behaviour is regarded with abhorrence by the community and deserves stern denunciation by the court in order to send a clear message to others who might behave similarly.  Protection of the community is of paramount importance, but your risk of re-offending has been assessed as being low and so there can be reduced focus on this aspect.

[2] Clarkson v R [2011] VSCA 157

26      For the same reason the need for specific deterrence is less important in this case.  An appropriate and just punishment, taking into account both the gravity of the offending and the mitigating circumstances, should be the outcome of this sentencing task.

27      I was also referred to the decision in R v Boland[3] where the offender was a child at the time of sexual offending against a teenage girl.  It was held there, and  I quote from that decision,

"Where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending."

[3] R v Boland [2007] VSCA 242

28      This case differs somewhat from the facts of that case as there was a greater age disparity in your circumstances and the offending was not an isolated incident.  Nonetheless the comments of Nettle J as he was then in the case of Boland as follows are apposite.

"Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime and of the offender's moral culpability take into account that what was done was done as a child or as a person of immature years and not as an adult or a person of greater maturity."

29      

You, of course, were not a child but you were immature in the ways that

Mr Newton has described and so the considerations applied in Boland apply to you as well.  The long delay to which I have already referred is a mitigating factor, as is also the impact of  the stress on your family resulting from the prospect of imprisonment, not because it would cause hardship as any prison sentence may do, but because your anguish over their hardship is a matter which would have an impact on your experience of prison, and that is something I should take into account in deciding to impose the sentence that I am imposing today.

30      The fact that you have pleaded guilty at a relatively early stage is also a mitigating factor because it has expedited the finalisation of the case and has avoided the need for a trial, sparing the complainant and her family from having to give further evidence.  I also accept it as an indication of remorse while acknowledging that you have also expressed elsewhere that you are deeply remorseful and apologetic.

31      The prosecution's submission on sentence was that a partly suspended term of imprisonment would be appropriate.  Having carefully considered all the mitigating factors in the context of the offending, I am satisfied that the appropriate sentence is one of imprisonment which should be wholly suspended.  The maximum penalties for these offences are ten years' imprisonment for Charge 1 and as I said earlier, five years for Charge 2.

32      Would you stand now please Mr Richards.

33      I sentence you to two years' imprisonment or Charge 1, and given that it was a serious form of assault and is a representative charge, two years for Charge 2.  For the same reasons I order that one year of that sentence  be cumulated upon the sentence for Charge 1 resulting in a total effective sentence of three years.

34      The order for cumulation reflects the two separate sets of activities and the serious nature of them even though they occurred on the same occasion and within the same timeframe. 

35      The sentence will be wholly suspended for two years.  This means that if you were to breach the suspended sentence by committing any offence which would attract a term of imprisonment, you would be brought back to court and would have to serve the sentence unless you could show exceptional circumstances as to why you should not serve it.

36      The provision of the Sex Offenders Registration Act apply and you will be required to report your details to the police every year for 15 years. You will be given a form to sign in relation to that shortly. 

37      If you had pleaded not guilty to these charges I would have sentenced you to three years' imprisonment of which two years would have been suspended.

38      The prosecution seeks an order for a forensic sample of saliva to be obtained.  Ms Gracer, I did not hear any instructions as to whether that is opposed or not?

39      MS GRACER:  Not opposed Your Honour.

40      HER HONOUR:  Not opposed.  In that case I make the order and explain that the police do have the power to use reasonable force to obtain the sample of saliva but I trust that will not be necessary.

HER HONOUR:  Are there any other matters?

MS GRACER:  No Your Honour.

MS HICKLING:  No Your Honour.

HER HONOUR:  All right now my associate has the form for the registration so would you like to accompany her to the dock.

MS GRACER:  Thank you Your Honour.

HER HONOUR:  Thank you,  you may adjourn the court now please.

- - -